Suzanne M. Payne, Relator, vs. U S Bancorp Information, Respondent, Commissioner of Economic Security, Respondent.

may not be cited except as provided by

Minn. Stat. § 480.08, subd. 3 (1996).

  STATE OF MINNESOTA

 IN COURT OF APPEALS

  C6-97-1968

State of Minnesota,

Respondent,

vs.

Dean Robert Arendt,

Appellant.

  Filed September 1, 1998

 Reversed

 Shumaker, Judge

Goodhue County

File No. K9-97-464

Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Stephen N. Betcher, Goodhue County Attorney, Goodhue County Courthouse, Room 103, 509 West Fifth Street, Red Wing, MN 55066 (for respondent)

Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Norton, Judge.[*]

  U N P U B L I S H E D O P I N I O N

  SHUMAKER, Judge

Appellant Dean Robert Arendt was convicted of second-degree burglary in violation of Minn. Stat. § 609.582, subd. 2(a) (1996). He appeals on the ground that the evidence in the record is insufficient to corroborate the accomplice testimony that led to his conviction. Because the record does not contain sufficient evidence to sustain appellant's conviction, we reverse.

  FACTS

On April 3, 1997, at about 10:30 a.m., the victim approached his home and noticed that the front and back doors were open. Inside, he observed the contents of a box scattered about the house. He heard a dog barking and running in the woods behind his house. Thinking that the person or persons who had been in his house might be in the woods, the victim drove his car to a clearing behind the house. He saw a car parked there. He called the police and waited in the area. Soon the car began to leave the clearing. The occupants were two males, later identified as Billy Albrecht, the driver, and appellant, the passenger. The victim followed the car and forced it to stop. As the police arrived, the victim saw one of the occupants throw a screwdriver from the car. As the police arrested both individuals, appellant stated that he had been in the woods searching for morel mushrooms. Both individuals were charged with burglary.

Appellant did not testify at trial nor did he present any witnesses in his defense. As part of a plea agreement,[1] Billy Albrecht testified at appellant's trial and identified appellant as his accomplice. A jury found appellant guilty of burglary in the second degree. This appeal followed.

  D E C I S I O N

On appeal, we may not retry the facts. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). Furthermore, we are required to view the evidence in a light most favorable to the verdict and to assume that the jury believed the state's witnesses and disbelieved evidence that contradicted such witnesses. Id.

Generally, a conviction can rest on the uncorroborated testimony of a single credible witness. State v. Hill, 285 Minn. 518, 518, 172 N.W.2d 406, 407 (1969). A conviction based on accomplice testimony, however, must be corroborated by additional evidence that tends to convict the defendant of the commission of the offense. Minn. Stat. § 634.04 (1996). Moreover, the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. Id. The corroborating evidence need not establish a prima facie case, and "is sufficient if it restores confidence in the accomplice's testimony, confirming its truth and pointing to the defendant's guilt in some substantial degree." State v. Jones, 347 N.W.2d 796, 800 (Minn. 1984) (quoting State v. Houle, 257 N.W.2d 320, 324 (Minn. 1977)). Corroborating evidence may include factors such as association with those involved in the crime, motive, opportunity to commit the crime, and proximity to the crime scene. State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980). "The quantum of corroborative evidence required in any case will depend on the circumstances involved, with consideration given to the claims of both the defendant and the state." State v. Mathiasen, 267 Minn. 393, 399, 127 N.W.2d 534, 539 (1964).

The second-degree burglary statute provides that whoever enters a building without consent and with intent to commit a crime is guilty of burglary in the second degree. Minn. Stat. § 609.582, subd. 2(a) (1996). Appellant argues that his conviction was based solely on accomplice testimony and that there is insufficient evidence to corroborate that testimony.

We hold that the evidence fails to corroborate the accomplice's testimony. The only direct evidence of appellant's participation in the burglary is Albrecht's testimony. The only corroborative evidence is that appellant was in the area of the victim's home and was with the accomplice at the arrest. These facts alone do not provide sufficient evidence tending to convict the defendant of second-degree burglary because they do not point to appellant's guilt in a substantial degree. See Jones, 347 N.W.2d at 800. Albrecht's testimony, at best, merely shows the commission of the offense. By law, this is insufficient corroboration.

Circumstantial evidence may be sufficient to corroborate accomplice testimony if the circumstantial evidence clearly supports appellant's implication in the crime. State v. Wallert, 402 N.W.2d 570, 573 (Minn. App. 1987), review denied (Minn. May 18, 1987). If evidence is as consistent with the defendant's innocence as with guilt, the evidence is not sufficient to corroborate the testimony of accomplices. Id.

The corroborating circumstantial evidence in this case is as consistent with appellant's innocence as with guilt. Appellant told the police officers that he was in the area searching for morel mushrooms. The evidence does not connect him to the burglary, but shows only that he was in the vicinity of the burglary and in the company of a person who confessed to that burglary. When viewed in the light most favorable to the conviction, this evidence was insufficient to permit the jurors to reach their verdict of guilty.

Reversed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Albrecht confessed and pleaded guilty to residential burglary before appellant's trial. As part of his plea agreement, Albrecht was sentenced to 45 days in jail and probation and was required to testify at appellant's trial.